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Judicial Independence in the PRC

China's judiciary continues to be subject to a variety of internal and external controls that significantly limit its ability to engage in independent decisionmaking. Several internal mechanisms within the judiciary itself limit the independence of individual judges. A panel of judges decides most cases in China, with one member of the panel presiding at trial. Despite recent reforms to enhance the independence of individual judges and judicial panels, court adjudicative committees led by court presidents still have the power to review and approve decisions in complex or sensitive cases. Finally, judges in lower courts frequently seek the opinions of higher courts before making decisions on cases before them. Some legal reformers in China oppose this practice, arguing that it undermines the right of appeal. China experts differ on whether the practice has become more or less frequent as reforms have progressed in recent years.

Local governments are the most significant source of external interference in judicial decisionmaking. Local governments often interfere in judicial decisions in order to protect local industries or litigants, or, in the case of administrative lawsuits, to shield themselves from liability. Local governments are able to exert influence on judges because they control local judicial salaries and court finances and also make judicial appointments. According to one recent SPC study, over 68 percent of surveyed judges identified local protectionism as a major cause of unfairness in judicial decisions. Judicial authorities in China speak frequently about the problem of administrative interference and have identified the spread of local protectionism as one of the principal problems facing the courts.

The Communist Party also influences judicial decisions in both direct and indirect ways. Party groups within the courts enforce Party discipline and the Party approves judicial appointments and personnel decisions. Judges conscious of these control mechanisms are conditioned to watch for changes in Party policy in carrying out their work. The Party exercises direct influence in individual cases through the Political-Legal Committees (PLCs) at each level of government. PLCs supervise and direct the work of state legal institutions, including the courts. PLCs are typically staffed by court presidents, the heads of law enforcement agencies, officials of the justice ministry or bureau, and other legal organs. Although PLCs focus primarily on ideological matters, they can influence the outcome of cases, particularly when the case is sensitive or important. Judicial surveys suggest that direct Party interference is less common than local government interference, but this distinction is clouded in practice, as most key government officials are also Party members.

A third significant form of external control is supervision by people's congresses and the procuratorate. Under the Chinese Constitution and national law, both the procuratorate and the people's congresses have the power to supervise the work of judges and the courts and to call for the reconsideration of cases. In the case of the procuratorate, this power presents particular problems. Because the procuratorate has a dual role as both prosecutor and supervisor of the legal process, it has a conflict of interest in exercising its function of supervising the courts.

Both Communist Party and government leaders in China have embraced ``judicial independence'' as a key reform goal and have taken limited steps to enhance the autonomy of China's judges and courts. Although important and complex cases are still subject to adjudication committee review, reforms have enhanced the power of presiding judges, and panels of trial judges now have the power to decide many ordinary cases without interference from court presidents or the adjudicative committee. The SPC and NPC also are discussing major structural reforms to combat the problem of local administrative interference in the courts. Three principal reforms under discussion are:

establishing a system of national judicial circuits that transcend administrative boundaries, which in theory would reduce the influence of local governments;

centralizing control over court finances and judicial salaries; and

transferring control over the appointment of judges at high-level courts or above to the central government, and control over appointments at intermediate-level courts and below to provincial governments.

Although only in the early stages of discussion, such reforms could help alleviate the problem of local protectionism and as a result enhance the autonomy of the judiciary.

Despite these steps, several factors limit the prospects for improved judicial independence in the short term. First, Chinese leaders have a more limited concept of "judicial independence" than that accepted in many Western countries. When Chinese leaders refer to "judicial independence," they are generally not referring to the independence of individual judges, but instead to the autonomy of the courts in relation to other entities and government institutions. Moreover, while the Chinese Constitution provides that the courts are not subject to interference by administrative organs, social organizations, or individuals, judges are expected to adhere to the leadership of the Party and submit to the supervision of the people's congresses and the procuratorate. Unlike in many Western countries, these influences are generally not considered improper restraints on judicial independence.

There is also a tension between judicial accountability and judicial independence. To deal with corruption and lack of professional competence in the court system, China's leaders have strengthened penalties for misconduct and wrongly decided cases and enhanced internal and external supervision of the courts. However, these steps also limit judicial independence. As China law expert Randall Peerenboom observes, improvements in judicial independence are likely to be incremental as China continues to deal with problems of corruption and competence in the courts.

Finally, limited resources and political realities will make it difficult for the Chinese government to implement major structural reform of the court system. Given the large size of the court system and limited central government resources, implementation of the more ambitious reform plans, such as centralizing control over judicial budgets and appointments, is unlikely in the near term. Moreover, reforms designed to increase the authority and stature of the courts will require constitutional changes and shifts in institutional balances of power. Law enforcement and administrative organs that would lose power to the judiciary as a result of such reforms are likely to resist the changes.